TMI Blog2004 (11) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Exports Ltd. (Adani, for short) and others. In keeping with this view, the original authority, by Order-in-Original dated 31-12-1998, affirmed the unit value credit of US $ 8.2 per kg. already fixed for Vitamin Mix, after rejecting Vishal's claim for fixing it at US $ 36 per kg. Aggrieved by the decision of the Assistant Commissioner of Customs, Vishal preferred an appeal to the Commissioner (Appeals) and also filed a Writ Petition in the High Court of Madras. The Hon'ble High Court, by its judgment dated 24-3-1999, allowed DEPB credit of US $ 36 per kg. (as allowed by the department to others) provisionally subject to certain conditions. The operative part of the judgment reads as under :- "5. There is no dispute that the other exporters are being given the credit facility at the rate of US $ 36 per kg. pursuant to the orders of the appellate authority mentioned in the prayer in the writ petition itself. Hence, I am of the view that the petitioner cannot be deprived of such benefit during the pendency of the appeal. However, to safeguard the interests of the respondents, the petitioner may be directed to furnish the bank guarantee. Since the appeal is pending, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. for vitamins scans to be an addition to the original letter, The photocopy of different sources including Chemical Weekly for international prices said to have been enclosed to the letter, is also not on record. In the fitness of things, this reference deserves to be discussed and ought to have been discussed and suitably disposed off by the, lower authority before finalising the credit eligibility." Pursuant to the above remand order, the Assistant Commissioner re-examined the case and passed order dated 18-10-2002 fixing the rate of DEPB credit for Vishal at US $ 8.2 per kg. of Vitamin Mix and directed them to discharge consequential duty liability. VISHAL again approached the Commissioner (Appeals) in an appeal against the Assistant Commissioner's decision and this appeal was allowed by allowing credit at the rate of US $ 36 per kg. to Vishal as in Adani's case. Hence the present appeal of the Revenue. 3.Heard both sides. Ld. DR reiterated the grounds of the appeal and emphatically submitted that the Tribunal's decision in Adani's case was based on definite evidence adduced by that party and the same was not applicable to the instant case wherein Vishal could not substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S $ 12.5 to 14.75 per kg., they revised their claim at the adjudication stage itself and such revised claim was liable to be considered. It was also contended that the input of the respondents was similar to Adani's. The word "similar" used here was sought to be explained with the aid of the Supreme Court's judgment in Nat Steel Equipment Private Ltd. v. CCE [1988 (34) E.L.T. 8 (S.C.)]. It was argued that the expression "similar" did not mean identical but only meant "corresponding to or resembling to in many respects; somewhat like; having a general, likeness". In view of this meaning of the expression "similar", the input of the respondents could easily be said to be similar to that of ADANI and, therefore, the judgment in Adani's case was to be followed in the instant case. In the course of his arguments, ld. Sr. Counsel also referred to the Madras High Court's judgment in Adani Exports Ltd. v. U.O.I. [2003 (151) E.L.T. 520 (Mad.)] wherein the scope of DEPB Scheme was explained. He argued that the entries in SION (Standard Input-Output Norms) were not to be pressed into service for deciding whether the input imported by one party was "similar" to the input imported by another pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l's claim of credit at the rate of US $ 40 per kg. The remand order was not challenged by Vishal. It should, therefore, be held that the assessee accepted the finding of the Commissioner (Appeals) that Adani's case was distinguishable on facts from theirs. This finding cannot be challenged by them in the pretext of defending the impugned order now. On the other hand, the Revenue has a valid challenge against the view taken by the Commissioner (Appeals) in the impugned order (that Adani's and Vishal's cases factually rest on the same footing), inasmuch as it was not open to her to take such view contrary to what had been conclusively held by her predecessor-in-office in the remand order. The predecessor's finding on the above issue had become final and conclusive for want of challenge. In the circumstances, on the principle of res judicata, we reject the contra view taken in the impugned order. 8.The view taken in the remand order dated 29-6-2000 of ld. Commissioner (Appeals) that Adani's and Vishal's cases are distinguishable on facts still prevails. Therefore, the pendency, in Supreme Court, of the Department's appeal against the Tribunal's decision in Adani's case has no bearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per kg., the original authority did not accept it as it felt that the claim was not capable of being verified. The Commissioner (Appeals) also did not allow this claim, in the impugned order. The assessee has not chosen to challenge this rejection of the claim for credit at the rate of US $ 40 per kg. Hence the claim for DEPB credit at the rate of US $ 40 per kg. does not survive. We have already rejected the lower appellate authority's decision to treat the assessee's case on par with Adani's and grant credit at the rate of US $ 36 per kg. to VISHAL. In the circumstances, we are of the view that the claim of the assessee for credit in the range of US $ 12.5 - 14.75 per kg. should be examined on its merits by the original authority, which did not examine this claim in its order dated 18-10-2002. Therefore, we have to set aside the orders of both the lower authorities and remand the case to the original authority. 10.In the result, this appeal is allowed by way of remand directing the original authority to consider the assessee's claim for DEPB credit at the rate of US $ 12.5 - 14.75 per kg. on its merits after giving them a reasonable opportunity of being heard. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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